Last reviewed 10 September 2019
Paul Clarke reports on the Government’s plans for product marking when we leave the EU.
When the European Single Market was created in 1992 it came with a raft of Directives intended to free manufacturers across Europe from having to meet particular local requirements such as safety testing regulations. CE marking was introduced to show that manufacturers had checked that their products met the required safety, health or environmental requirements by complying with the relevant European legislation. CE is an abbreviation of the French phrase “Conformité Européene” (European Conformity). This then guaranteed that the products could move freely within the Single Market.
While only those product categories subject to specific Directives that provide for CE marking are required to be marked, the range is extensive and includes:
appliances burning gaseous fuels
eco-design of energy-related products
explosives for civil uses
household refrigerators and freezers
personal protective equipment
radio and telecommunications terminal equipment
In general, the CE marking must be attached to the product itself but it may also be placed on the packaging, in manuals and on other supporting literature.
What happens after Brexit?
The Department for Business, Energy and Industrial Strategy (BEIS) has announced that the UKCA (UK Conformity Assessed) marking will be the new product marking that will be used for certain goods being placed on the UK market if there is no agreement with the EU before Brexit. In the majority of cases it will still be possible to use the CE marking when selling goods on the UK market after the UK leaves the EU but this will apply for only a limited time after that date. Only the UKCA marking will then be recognised for the UK market.
No firm date has been set for the changeover but BEIS has said that it will consult and give businesses notice before ceasing to recognise the CE marking. It has also highlighted that a product bearing the CE marking would still be valid for sale in the UK so long as it was also UKCA marked and complied with the relevant rules in this country.
The Department makes clear that manufacturers need to take action if they are placing certain goods on the UK market after the UK leaves the EU and should contact their solicitor or trade association for advice on whether those goods will be affected. They also need to take action if they currently have to have their goods assessed by a conformity assessment body and if they are currently using a UK-based notified body or plan to do so after Brexit. Detailed guidance on preparing to use the UKCA mark can be found at GOV.UK.
Will that be the end of CE marking?
The short answer is no, as the UKCA marking will not be recognised on the EU market and products currently requiring a CE marking will still need that designation if they are to be put on sale in one of the Member States. It will remain the manufacturer’s responsibility to carry out the conformity assessment, set up the technical file, issue the EC Declaration of Conformity (DoC) and place CE marking on a product as laid down in the relevant legislation. Anyone importing a product from a third (non-EU) country will be required to check that the manufacturer in that country has undertaken the necessary steps. The importer must check that the documentation is available.
There are more than 20 Directives setting out the product categories requiring CE marking. The essential requirements that products have to fulfil, such as safety, are created at EU level but are set out only in general terms in the legislation. Harmonised European standards are issued with reference to the applied Directives and these set out the essential safety requirements in detailed technical terms. Although the use of these harmonised standards remains voluntary, the responsibility lies with the manufacturer or importer to ensure that the product complies with the essential requirements of the relevant EU legislation. If they choose not to follow the standards, therefore, they must be able to show other relevant documentation to prove that the product is safe.
Using the UKCA marking
As with CE marking, in most cases the UKCA marking must be applied to the product itself or to the packaging although, in some cases, it may be placed on the manuals or on other supporting literature. This will vary depending on the specific regulations that apply to the product.
There are general rules which will apply across the board, including:
when attaching the UKCA marking, the manufacturer/importer takes full responsibility for the product’s conformity with the requirements of the relevant legislation
UKCA marking must only be used to show product conformity with the relevant UK legislation
no other markings can be made on the product which affect the visibility, legibility or meaning of the UKCA marking
the UKCA marking cannot be placed on products unless there is a specific requirement to do so in the legislation
it must only be placed on a product by the manufacturer or their authorised representative (where allowed for in the relevant legislation)
they must not place any marking or sign that may misconstrue the meaning or form of the UKCA marking to third parties.
the UKCA marking must be at least 5mm in height — unless a different minimum dimension is specified in the relevant legislation
it must be easily visible, legible and permanent
if the size of the marking is reduced or enlarged, the letters forming the UKCA marking must be in proportion to the version set out above.
Documentation must be retained for up to 10 years after the product is placed on the market to demonstrate that the product conforms with the regulatory requirements. This is the responsibility of the manufacturer/importer or their authorised representative (where allowed for in the relevant legislation). It should be noted that this information can be requested at any time by market surveillance or enforcement authorities to check that the product is in conformity with the statutory requirements.
The information required will vary depending on the specific legislation relevant to the product but there are a number of general requirements. For example, the file must include details of how the product is designed and manufactured and how it has been shown to conform to the relevant requirements. The addresses of the manufacturer and any storage facilities must also be given.
UK Declaration of Conformity
This document must be drawn up for most products lawfully bearing a UKCA marking. The Declaration of Conformity must state that the product conforms with the relevant statutory requirements applicable to it and must include the name and address of the manufacturer (or their authorised representative) together with information about the product and the conformity assessment body (where relevant). It has to be made available to market surveillance authorities on request.